Timpanogos Tribe v. Conway

• Decision Date: 15 April 2002
• Docket Number: No. 01-4056.,01-4056.
• Citation: 286 F.3d 1195
• Parties: TIMPANOGOS TRIBE, Snake Band of Shoshone Indians of Utah Territory, Plaintiff-Appellee, v. Kevin CONWAY, Assistant Director, Utah Department of Natural Resources, Division of Wildlife Resources; Michael O. Leavitt, Governor of the State of Utah, Defendants-Appellants. Ute Indian Tribe of the Uintah and Ouray Reservation, Utah, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

286 F.3d 1195

TIMPANOGOS TRIBE, Snake Band of Shoshone Indians of Utah Territory, Plaintiff-Appellee, v. Kevin CONWAY, Assistant Director, Utah Department of Natural Resources, Division of Wildlife Resources; Michael O. Leavitt, Governor of the State of Utah, Defendants-Appellants Ute Indian Tribe of the Uintah and Ouray Reservation, Utah, Amicus Curiae.

No. 01-4056.

United States Court of Appeals, Tenth Circuit.

April 15, 2002.

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Philip C. Pugsley, Assistant Attorney General (Mark L. Shurtleff, Attorney General, with him on the briefs), State of Utah, Salt Lake City, UT, for Defendants-Appellants.

Michael L. Humiston of Heber City, UT, for Plaintiff-Appellee.

Sandra Hansen, Office of Legal Counsel, Ute Indian Tribe, Fort Duchesne, Utah; and Tod J. Smith of Whiteing & Smith, Boulder, CO, filed a brief for Amicus Curiae.

Before SEYMOUR and HENRY, Circuit Judges, and OBERDORFER,^* District Judge.

SEYMOUR, Circuit Judge.

The Timpanogos Tribe, Snake Band of Shoshone Indians of Utah Territory and aboriginal inhabitants of the region, filed suit against Kevin Conway, Assistant Director of the Utah Department of Natural Resources, and Governor Michael Leavitt of Utah. The district court denied defendants' motion to dismiss on the basis of, inter alia, Eleventh Amendment immunity. Defendants filed an interlocutory appeal of the Eleventh Amendment immunity issue and ask us to assert pendant appellate jurisdiction over the other issues argued in support of their motion to dismiss. We reach only the issues of Eleventh Amendment immunity and subject matter jurisdiction, and we affirm.

I.

The Tribe's complaint originally sought to quiet title on the Uintah Valley Reservation and obtain the following: a declaration that the Timpanogos Tribe, and not the Ute Tribe, are the "Indians of Utah" contemplated in the Executive Order, see Exec. Order, 1 Kappler 900 (Oct. 3, 1861), and Congressional Act, see Act of May 5, 1864, ch. 77, 13 Stat. 63, creating the Reservation; recognition of their rights under the Order and Act, specifically rights to hunt, fish, and gather; and a declaration that Messrs. Conway and Leavitt have no authority to regulate or control the hunting, fishing, or gathering rights of the Timpanogos Tribe on Indian lands within the Reservation, except as such authority is explicitly granted to the State of Utah by Act of Congress or consented to by the Tribe. Defendants filed a motion to dismiss under FED.R.CIV.P. 12(b)(6) raising five issues: (1) Eleventh Amendment immunity; (2) res judicata; (3) lack of subject matter jurisdiction under 28 U.S.C. § 1331; (4) failure to join indispensable parties; and (5) laches.

Over the course of a hearing on the motion and at the suggestion of the district court, the Tribe narrowed its complaint to come within the Ex parte Young exception to Eleventh Amendment sovereign immunity. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). By the end of the hearing, the Tribe had agreed to amend its complaint to seek nothing more than prospective, non-monetary, injunctive relief as to its hunting, fishing, and gathering rights within the Indian-controlled lands of the Uintah Valley Reservation.¹ The district court denied the motion to dismiss on all grounds.

II.

Our initial concern on appeal is jurisdictional. Courts of appeals normally have jurisdiction only over final decisions of the district courts. 28 U.S.C. § 1291. There are exceptions to the final judgment rule. A judgment that is not the complete and final judgment in a case is immediately appealable if it "fall[s] in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 143, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).

It is well-established that orders denying individual officials' claims of absolute and qualified immunity are among those that may be immediately appealed. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (absolute immunity). In Puerto Rico Aqueduct, the Court extended the Cohen collateral-order doctrine to denials of states' and state entities' claims to Eleventh Amendment immunity. See Puerto Rico Aqueduct, 506 U.S. at 147, 113 S.Ct. 684 ("We hold that States and state entities that claim to be `arms of the State' may take advantage of the collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity."). We thus properly exercise appellate jurisdiction over the Eleventh Amendment claim.

Defendants also urge us to exercise pendant appellate jurisdiction over the other claims asserted in their motion to dismiss, although none of them would warrant an interlocutory appeal on its own. Those issues include res judicata, subject matter jurisdiction under 28 U.S.C. § 1331, failure to join necessary and indispensable parties under FED.R.CIV.P. 19(b), and laches. In addition, defendants contend the complaint should be dismissed for the alleged failure of the Tribe to exhaust administrative remedies for federal tribal recognition under 25 C.F.R. Part 83.

We have jurisdiction over an extremely narrow class of claims raised interlocutorily. The collateral order doctrine sets a high bar for any interlocutory appeal, allowing appeal from only those decisions that are conclusive, resolve important questions separate from the merits, and are effectively unreviewable on appeal from final judgment. See Cohen, 337 U.S. at 546, 69 S.Ct. 1221. In Swint v. Chambers County Comm'n, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), the Supreme Court held the Cohen doctrine applies to pendent claims as well. Pendant claims are thus appealable "if, and only if, they too fall within Cohen's collateral-order exception to the final-judgment rule." Id. at 49, 115 S.Ct. 1203.

In urging us to take jurisdiction over their pendent claims, defendants cite to only one case: the Fifth Circuit's pre-Swint decision in In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088 (5th Cir.1977). Nissan held interlocutory review may include related, threshold issues raised in the same motion which have the potential of being dispositive. Id. at 1096. Our circuit, however, has taken a different approach to the issue in light of Swint.

We have recognized that the exercise of pendent appellate jurisdiction "is generally disfavored." Armijo By and Through Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1264 (10th Cir.1998) (quoting Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir.1995)). With that in mind, we have interpreted Swint to mean that pendent appellate jurisdiction may still be appropriate "where the otherwise nonappealable decision is `inextricably intertwined' with the appealable decision, or where review of the nonappealable decision is `necessary to ensure meaningful review' of the appealable one." Moore, 57 F.3d at 930 (quoting Swint, 514 U.S. at 51, 115 S.Ct. 1203); see also Armijo, 159 F.3d at 1264-65.

[A] pendent appellate claim can be regarded as inextricably intertwined with a properly reviewable claim on collateral appeal only if the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal — that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well.

Id.

Defendants do not provide any reasons why their pendent claims based on res judicata, Rule 19(b), exhaustion, and laches are "inextricably intertwined" with their Eleventh Amendment interlocutory claim. In fact, they do no more than cite to Nissan. Having reviewed these claims in light of the precedents in this circuit, we are unable to find any justification that would allow us to exercise appellate jurisdiction over them.

We reach a different result with respect to defendants' claim that the Tribe has failed to identify a basis for the exercise of subject matter jurisdiction under 28 U.S.C. § 1331. The Supreme Court recently reiterated its longstanding rule that jurisdiction is a threshold question which an appellate court must resolve before addressing the merits of the matter before it. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "`On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes.'" Id. at 94, 118 S.Ct. 1003 (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900)). "[I]f the record discloses that the lower court was without jurisdiction this court will notice the defect.... [W]e have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." Id. at 95, 118 S.Ct. 1003 (internal quotations omitted).

In concluding we must address defendants' argument that the district court lacked subject matter jurisdiction over the Tribe's claim, we agree with the Second Circuit's determination in Merritt v. Shuttle, Inc., 187 F.3d 263 (2d Cir.1999), that deciding the jurisdictional issue in an interlocutory appeal does not run afoul of Swint. As in Merritt, our examination of the basis for the district court's subject matter jurisdiction over the Tribe's claim is necessary to ensure meaningful review of the district court's order denying Eleventh Amendment immunity on that claim. See id. at 269; see also ANR Pipeline Co. v. Lafaver, 150 F.3d...